Miami Herald Real Estate Column by Michael Hyman: “Boca Condo Offers Case Study in Pitfalls of Prolonged Litigation for Associations, Owners”

Siegfried Rivera
March 26, 2023


The firm’s latest Miami Herald “Real Estate Counselor” column was authored by Michael L. Hyman and appears in today’s edition of the newspaper.  The article, which is titled “Boca Condo Offers Case Study in Pitfalls of Prolonged Litigation for Associations, Owners,” focuses on the takeaways from the ongoing epic litigation involving the Boca View Condominium that has been covered by the Sun Sentinel.  His article reads:

. . . This latest of several articles by the newspaper on Boca View’s litigation chronicles how unit owner Eleanor Lepselter is now asking the court to find the association in contempt and impose fines of $500 a day until it complies. It states that deadlines set by two court rulings for the association to produce the records have already passed, and the motion for contempt that was filed on Feb. 21 accuses the association of having no plan to release the records.

The case dates back to February 2019 when Lepselter submitted written requests to the association’s property manager seeking to inspect financial records for the four-story, 72-unit property that lies between the Intracoastal Waterway and Atlantic Ocean in Boca Raton. Her request stated she had appointed her attorney to conduct the inspection, and the attorney’s request cited a provision of Florida’s condominium laws requiring associations to make such records available to unit owners or their personal representatives.

The association responded by designating a time for Lepselter to inspect its financial records, but it refused to allow her attorney to accompany her. She challenged that decision by filing for arbitration with the state’s Department of Business and Professional Regulation, and the agency’s arbitrator found in her favor.

Boca View then appealed this decision by filing a lawsuit against Lepselter accusing her of acting on behalf of two other unit owners who had also sought access to the records and were represented by the same attorney.

Indeed, the newspaper reports, filings in various cases involving the parties established that they had been involved in previous disputes with the association board and its longtime president Diana Kuka.

Last October, the Palm Beach Circuit Court ruled the association had incorrectly interpreted Florida’s law by assuming the right to select who could inspect the records — the unit owner or the representative. The ruling found that under state law, the board had no authority to deny Lepselter’s right to appoint her personal representative to inspect the records, and it included an order for the records to be made immediately available to the attorney.

Boca View responded by filing a motion for a rehearing and a new trial, alleging the judge’s final judgment was prepared by Lepselter’s attorneys and included statements not attributable to the court. However, three days before he was set to retire, the judge denied the motion.

The association responded by filing a motion claiming that it, rather than Lepselter, was entitled to collect attorney’s fees because it “secured a judgment more favorable than the arbitration award” that it was appealing. It also filed a motion to extend the deadline to comply with the judge’s final order, and its attorneys filed a motion to withdraw as counsel due to “irreconcilable differences” with the Boca View board of directors.

The association also went on to file a notice for an appeal before the Fourth District Court of Appeal together with a motion to suspend enforcement of the prior rulings ordering production of the records.

This motion was since denied by the new circuit court judge assigned to the case, who noted in her order that Boca View failed to submit evidence demonstrating the original judge erred in his rulings, the association’s appeal was likely to succeed, or that it would suffer irreparable harm if the stay was not granted.

Boca View then filed an emergency motion for a rehearing “based on several factors including issues that stretch back for years and which the Court may have misapprehended, found confusing, or was unable to explore in depth over the course of a short 30-minute hearing on two motions.”

The newly assigned judge denied the motion, and the association’s new attorneys filed a motion for a non-emergency hearing to be held on May 15.

As this case dramatically illustrates, little good can come from highly contentious and prolonged litigation between community associations and their unit owners for all the parties involved. In the association setting, some disputes are bound to arise from time to time, but finding and adhering to equitable resolutions should be the goal for both sides. . .

Michael concludes his column by noting that obstinately refusing to accept court decisions and continuing to pursue losing cases can lead to significant legal and financial liabilities for associations and unit owners, who are often surprised to learn they can be on the hook for the association’s legal fees as well as their own if they do not prevail.  He advises owners in communities with highly litigious boards of directors to consider moving in a different direction with new candidates for board seats who are more inclined to resolving disputes.

Our firm salutes Michael for sharing his insights into the takeaways from this ongoing legal saga with the readers of the Miami Herald.